___________ No. 96-1001

___________ State of Missouri, * * Plaintiff - Appellee, * * United States of America, * * Intervenor-Plaintiff - * Appellee, * * v. * * Independent Petrochemical * Corporation; Russell Martin * Bliss; Jerry-Russell Bliss, * Inc., * * Defendants, * * Syntex Laboratories, Inc.; * Syntex Agribusiness, Inc.; * Syntex U.S.A., Inc.; Syntex * Corporation, * * Defendants - Appellees. * Appeal from the United States District Court for the Eastern United States of America, * District of Missouri. * Plaintiff - Appellee, * * St. Louis County, * * Intervenor-Plaintiff - * Appellant, * * v. * * Russell Martin Bliss; * Independent Petrochemical * Corporation, * * Defendants, * * United States of America; * Syntex, *

### -2- * Defendants - Appellees. *
State of Missouri, * * Plaintiff - Appellee, * * v. * * Russell Martin Bliss, * * Defendant. *
State of Missouri, * * Plaintiff - Appellee, * * v. * * Syntex U.S.A., Inc., * * Defendant. *
United States of America, * * Plaintiff - Appellee, * * v. * * Russell Martin Bliss, * * Defendant. *
United States of America, * * Plaintiff - Appellee, * * v. * * Russell Martin Bliss, * * Defendant. *

___________ Submitted: September 12, 1996

### The Honorable John F. Nangle, Senior United States District 1 

### Judge for the Eastern District of Missouri. -3- Filed: January 3, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and ROSS, Circuit Judges.

___________ ROSS, Circuit Judge.

St. Lo uis County appeals from the district court's denial of it s 1 motion to intervene a nd from the court's ruling on the Syntex defendants' moti on to construe and enforce compliance with the Consent Decree i n connection with the cleanup of toxic waste in Times Beach, Missouri. We affirm.
Various aspects of this litigation have been pending in federal court since 1984, when the United States commenced a civil action against th e Synte x defendants pursuant to the Comprehensive Environmental Response , Compensation, and Lia bility Act (CERCLA), 42 U.S.C. §§ 9601, et seq., and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901, et seq., to seek remedial relief and recovery of re sponse costs in connection with the release of d ioxin and other hazardous substances at Times Beach, Missour i, and twenty-six other sites in eastern Missouri in the earl y 1970s.

On September 28, 1988, the Environmental Protection Agency (EPA ) issued a Record of De cision (ROD) in which it selected thermal treatment,
a form of incineration, as the cleanup remedy for these sites. The RO D
anno unced the applicable or relevant and appropriate standards (ARARs ) identified by the EPA in accordance with § 121(d)(1) of CERCLA, 42 U.S.C. § 962 1(d)(1), with which the defendants were required to comply in th e installation and operation of the thermal treatment unit at the Times Beac h site.

### -4- In 1990, the Syntex defendants entered into a Consent Decree wi th the EPA and the State of Missouri which called for the parties to remediate th e twenty-seven affected sites. Five workplans, including a Thermal Treatmen t Workplan that described how the remedial work was to be performed, wer e incor porated by reference into the Consent Decree. The decree and it s workpl ans contemplated that the Syntex defendants would apply for a Hazardous Waste Management Permit from the EPA and the State of Missouri to construct and operate the incinerator.

A perm it application was submitted on July 30, 1993, and a draf t EPA/Mis souri Hazardous Waste Management Facility Permit was issued o n December 16, 1994. T his Draft Permit proposed a formula for establishing the allowable quantit y of dioxin and metals emissions necessary to ensure that these emissions did not exceed health-based standards established by law
. This formula was based upon a site-specific Times Beach Ris k Assessment analyzing risks conservatively projected for the initial phase of th is particular incineration project. The Permit and the Ris k Assessment concluded that the project could be c onducted safely so long as less than approximately one nanogram of dioxin per dry standard cubic mete r of ai r ( 1 ng/m ) was emitted from the incinerator at any time. I n 3 effect, for this project, the term "safely" was defined by EPA and th e State of Missouri as not subjecting even the most heavily expose d individuals to more than a one in a million chance of developing cancer. This level of risk, which is also often expressed as 1 x 10 , constitutes -6 the most stringent level that EPA is authorized to impose upon an y Superfund project. 40 C.F.R. § 300.430(e)(2). On January 31, 1995, a public hearing was held concerning the Draft Permit. Written comments wer e also invited and several hundred pages of suggestions and reactions were received.
On February 8, 1995, shortly after the hearings concerning the

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EPA/Missouri Draft Permit, the County Council of St. Louis County (th e Cou nty) amended its Air Pollution Control Code by enacting an ordinanc e purporting to impose new, strict standards for inclusion in air emissions permits for any "incinerator intended to burn known concentrations of . .
. dioxin." The only such incinerator in the County was the incinerator at Times Beach. Among other things, the ordinance purported to establish a dioxin emissions standard of .15 ng/m , more than six times as restrictive 3 as the 1 ng/m standard that EPA an d the State of Missouri had determined 3 to be appropriate. Although the EPA and the State were aware the County ordinance had been enacted two months earlier, the Final EPA Permi t subseq uentlyissued on April 14, 1995, nevertheless retained the les s restrictive 1 ng/m standard. 3

In respo nse to the County ordinance, the Syntex defendants filed a motion requesting the district court to construe and clarify thei r obligations pursuant to the Consent Decree. The United States supported Syntex's motion. After the Syntex defendants filed their motion t o construe, the County filed a motion to intervene as a matter of right, or in the alternative for permissive intervention, arguing that it had a n interes t in the interpretation and enforcement of its ordinance. Th e district court solicited a memorandum from the County addressing the issue s raised in both the motion to intervene and the motion to construe. On August 15, 1995, after considering the County's memorandum, th e court den ied the County's motion to intervene as a matter of right, bu t stated that its "request to permissively intervene . . . has effectively been gran ted," as the County had the opportunity to file a brief i n opposition to Syntex's motion to construe. The court subsequently entered
an order declaring the County ordinance "inapplicable to the Times Beach project" and limiting the scope of the County air permit to "control o f conventional air pollutants, not including dioxin." The court concluded the Consent Decree did

### -6-

not obligate the parties to comply with the newly-enacted County ordinance
. We do not discuss the intervention issue in deta il because even if we were to assume the court erred in denying the motion to intervene, any error wa s harmless given the fact that the County had the opportunity to present its position regarding Sy ntex's motion to construe and effectively was heard. Instead, we turn to the substantive issue presented in this appeal.

In review ing a district court's interpretation of a consent decree, this court must look to rules of contract interpretation. United States v. Knote , 29 F.3d 1297, 1299 (8th Cir. 1994). T he review is de novo where the interpretation is based solely on the written document and clearl y erroneous where the interpretation is based on e xtrinsic evidence. Id . at 1299-1300. However, when interpreting the meaning of a consent decree, "w e are not to ignore the context in which the parti es were operating, nor the circumstances surroun ding the order. This is because a consent decree is a peculiar sort of legal instrument that cannot be read in a vacuum." Id
. at 1300 (citation omitted). A consent decree is "a kind of private law, agreed to by the part ies and given shape over time through interpretation by the cour t that entered it. We therefore give a large measure o f deference to the interpretation of the district court that actually entere d the decree." Id . (citation omitted).

The Count y now argues that the parties to the Consent Decree agreed that Syntex would submit to the County's permitt ing authority, even though they were no t required to do so by federal law. While the Therma l Treatment Workplan expressly acknowledges that under § 121(e)(1) of CERCLA , no local permit is required for any removal or remediation action conducte d onsite, the Syntex de fendants nevertheless agreed to apply for air, water and hazardous waste permits to construct and ope rate the thermal treatment unit, including a "St. Louis County Department of Health ai r construction/operating permit for the Thermal Treatment Unit."

### 40 C.F.R. § 300.430(f)(1)(ii)(B)(1) provides: 2 

### Requirements that are promulgated or modified after ROD signature must be attained (or waived) only when determined to be applicable or relevant and appropriate and necessary to ensure that the remedy is protective of human health and the environment. The Workplan provided in part: 3 

### The Work, as defined in the Consent Decree, must attain a requirement that is promulgated or modified after September 29, 1988 (the date of signature of the ROD) only when the EPA Administrator (or his delegate) determines, upon a finding based on the best scientific judgment available to EPA, that such requirement is . . . necessary to ensure that the Work is protective of human health and the environment. . .. Thermal Treatment Workplan, at 6-11. See also Consent Decree, ¶ 6-7. -7- It is this clause in the workplan upon which the County maintains it has authority to enforce its 1995 ordinance.

The County overlooks the fact, however, that federal regulation s provide that all ARARs are "frozen" as of the date of the ROD unless the EPA determines that new standards are "necessary to ensure that the remedy is protective of human health and the environment." See 40 C.F.R
. § 300.430( f)(1)(ii)(B)(1). This regulatory requirement was specifically 2 incorpor ated into the Consent Decree and its attached Thermal Workplan. 3 The EPA's rationale for freezing the applicable standards as of the date of the ROD is to prevent "continually changing r emedies to accommodate new or modified requireme nts," which would "adversely affect the operation of the CERCLA program, [ and] would be inconsistent with Congress' mandate to expeditiously clean up sites." 55 Fed. Reg. 8666, 8757 (1990).

The dis trict court correctly ruled that the "EPA has not and coul d not logically make a determination that the County's new .15

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ng/m standard is 'necessary,' since it has already determined in it s

3 recent Final Permit that approximatel y 1 ng/m is adequate." The EPA was 3
awar e of the ordinance standards when it issued its Final Permit an d declined to adopt the stricter standards. The EPA did not make th e determ ination that a stricter dioxin emission standard was necessary t o protect human health and the environment. In fact it implicitly rejected this standard by choosing not to adopt it in the Final Permit
. Acc ordingly, federal law does not permit the modification of the dioxi n emission standard at this late date.

We also reject the County's assertion that the workplan authorize s the County to impose dioxin standards after the September 1988 freeze date
. Notwithstanding that the Thermal Treatment Workplan appended to the Consen t Dec ree reflects a limited agreement among the parties that Syntex woul d apply to the County f or a permit regarding certain air emissions from the incinerator, that agreement only mentions certai n conventional pollutants, not including dioxin. This provision never contemplated that seven years lat er the County would amend its air emissions ordinance in such a restrictive manner.

The workp lans do not suggest an intent by the parties to alter o r waive the fundamental proposition in federal law that ARARs are frozen as of the date of the ROD. Nowhere does the workplan grant the Count y authority to unilaterally modify the ARARs estab lished in the ROD. To the contrary, the Thermal Treatment Workplan specifically states that the ARAR s are frozen as of the date of signature of the ROD, absent an EPA finding that an alteration is necessary to ensure the protection of human health and th e environment. As stated previously, the EPA has made no suc h finding.
Despite its awareness of the project, the County did not ask

### -9-

the state to nominate any standard regarding dioxin emissions to b e included in the ROD in 1988. Its ordinance was not approved until Februar y 8, 1995, almost seven years after the ROD froze the relevant standards
. The County cannot now alter these standards by inserting more restrictive language into its county air permit. See United States v. Akzo Coatings of America, Inc. , 949 F.2d 1409, 1454-55 (6th Cir. 1991) (once a consent decr ee is entered by a federal court under CERCLA, alternative stat e remedies may not be pursued).

The County's ordinance regarding the air emissions of dioxin i s inco nsistent with federal law and is inapplicable to the Times Beac h project. The judgment of the district court is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.